Thursday, August 23, 2012

Overturning thirty year old precedent the Court of Appeals of Maryland has ruled that former Redskins punter Thomas Tupa is entitled to workers compensation. The state high court, in Pro-Football, Inc/ t/a Washington Redskins v. Tupa overruled a 1983 decision in Rowe v. Baltimore Colts in which it had held that an injury must be unusual to be compensable.

The Rowe court had written

“On the other hand, a professional football player is engaged in an occupation in which physical contact with others is not only expected, commonplace, and usual, but is a requirement.”

The Court in Tupa's case found no support for that requirement in the statute. Judge John Eldridge embraced the scathing language of the treatise Larson's workers compensation, which rejects the minority rule that professional footballers' injuries are not covered by workers compensation:

“And why is doing the job itself not covered? Because everyoneknows it is fraught with danger. As well, then, tell the coal miner– whose occupation is far more dangerous – that he or she iscovered, so long as the miner does not go down into the mine . . . .The books are full of cases in which compensation is denied acovered worker because he or she was not doing the job at the time.But never before because he or she was doing the job....To say thatfootball injuries are not accidental because of the probability ofinjury is, if one looks more closely, no more than to say that anyactivity with a high risk factor should be ruled noncompensable.”

The case is a modest step forward. Other questions remain for sport: why aren't college scholarship athletes considered employees entitled to workers compensation? And should professional players be able to sue for brain injuries on the ground that they were defrauded by their employers and the NFL's suppression of data about the risks of traumatic brain injury?